The main part of our Application is Section 3, where we explain why the ministry should undertake the review.

Here is our argument -

We believe that the ministry should undertake our Review to protect the environment because:

Toronto has a sewage bypass problem

Sludge covers the shoreline of the Humber River one week after the 2013 storm. Photo by Krystyn Tully.

On July 8, 2013, 126 mm of rain fell on the City of Toronto. This was one of the largest storm events in Toronto history. The equivalent of an entire month’s rainfall fell in two hours, shattering precipitation records.

When the rain hit the city, it had nowhere to go. Roughly 50% of the city’s surfaces are impervious (roads, sidewalks, parking lots and rooftops). Those areas could not absorb the rain, so it flowed into storm drains. When all that stormwater combined with sewage (i.e., wastewater from toilets, dishwashers, sinks, washing machines, commercial businesses and industry), it overwhelmed two of Toronto’s sewage treatment plants.

The Humber Wastewater Treatment Plant (“Humber WWTP”) bypassed an estimated 367,364 m3 of sewage over 28 hours from the plant and an additional 116,578 m3 was bypassed over 19 hours at Berry Road on the Humber River.

The Ashbridges Bay Treatment Plant (“Ashbridges WWTP”) also bypassed during the storm. This bypass lasted just under 12 hours and discharged 704,846 m3 of sewage.

During the storm, media and social media reports showed Torontonians immersed in the floodwaters. People waded through flooding to escape the Don River Valley and splashed in flooded parks.

Within a few hours of the storm, those floodwaters began to recede. With the exception of basements and areas where sewers backed up, water generally returned to river valleys, and parks and streets dried up. Then it got hot. Temperatures in most parts of Toronto ranged between 25 and 31 degrees celsius between July 9 and July 15, 2013. There was virtually no rain in the entire week following the storm.

With soaring temperatures and clear skies, Torontonians did what they always do: they headed to the water.

This is when a new problem arose. We observed Torontonians fishing, paddling, and splashing in the Humber River and nearby Lake Ontario. These individuals had not been informed about the bypass, so it was impossible for them to take precautions to protect their health or the health of their families.

The issue, and the focus of this Application for Review, was the City’s failure to issue an advisory to Toronto inhabitants about potential water quality problems. Residents had no way of knowing that the storm caused bypasses and combined sewer overflows that would affect water quality. They had no information to prevent them from heading to the water to beat the heat (or escape their flooded basements).

The only areas in the city where water quality is regularly monitored are the 11 official beaches. Red or green flags are shown at these beaches when lifeguards are on duty, advising swimmers of water quality results from daily sampling. In the rest of the city, however, no water quality monitoring is conducted and no water quality information is shared with the public. This is a significant problem for anyone who paddles, rows, surfs, or sails - activities that generally happen away from public beaches.

We waited for the City of Toronto to issue some kind of advisory following the storm. When no advisory was forthcoming, Krystyn Tully and Lake Ontario Waterkeeper staff collected samples at several popular recreational watersport locations.

On July 12, 2013 (four days following the storm), water samples collected from the Toronto Harbour near Sugar Beach contained E. coli levels more than three times higher than provincial water quality guidelines. The Humber River contained E. coli levels at least 20 times higher than provincial guidelines. Samples collected on July 16, 2013 showed that contamination remained well above the guidelines.

Four days after the storm, an unusually noticeable brown discolouration was visible where the Humber River mixed with Lake Ontario. Nine days after the storm, sludge coated the eastern shore of the lower Humber River below the WWTP.

While collecting these samples and documenting water quality conditions, we staff observed Torontonians swimming and paddling in the water. On the lower Humber River, just outside the WWTP, residents kayaked, fished, canoed, and even waded in the water.

The bacteria levels at the time were well above the levels known to cause impacts on human health and aquatic life; yet, there were no warnings, no signs, and no media reports advising the public of the risk.

Toronto’s sewage bypass problem is ongoing

The July 8 storm captured the public’s imagination because of the unusual amount of rain and the flash flooding. Unfortunately, the bypasses that accompanied the storm happen regularly in Toronto.

The tables below summarize the number and volume of reported secondary bypasses in the City of Toronto for the years 2013, 2012, and 2011. They show that the city bypasses significant volumes of sewage into Lake Ontario regularly, even in the absence of record-breaking storms.

City of Toronto Bypasses, 2013

Humber WWTP: 28 bypasses, 2,081 ML / 2,081,000 m3

Ashbridges Bay WWTP: 10 bypasses, 2,074 ML / 2,074,000 m3

TOTAL: 28, 4,155 ML / 4,155,000 m3

City of Toronto Bypasses, 2012

Humber WWTP: 21 bypasses, 434 ML / 434,000 m3

Ashbridges Bay WWTP: 9 bypasses, 1,774.8 ML / 1,774,800 m3

TOTAL: 30 bypasses, 2,208.8 ML / 2,208,800 m3

City of Toronto Bypasses, 2011

Humber WWTP: 48 bypasses, 1,138 ML / 1,138,000 m3

Ashbridges Bay WWTP: 15 bypasses, 4,650 ML / 4,650,000 m3

TOTAL: 63 bypasses 5,788 ML / 5,788,000 m3

The City of Toronto’s annual reports reveal that Toronto’s sewage bypass problems are not isolated to record-breaking storm events. While the Humber WWTP bypass July 8-9 2013 were the largest at that plant between 2011 and 2013, Ashbridges Bay saw two larger bypass events in March and November of 2011.

The City of Toronto does not warn the public when bypasses happen

Provincial law requires that the City of Toronto report sewage bypasses to the Ministry of the Environment and to the municipality where the bypasses occur.

In 2013, there were 38 bypasses. A Freedom of Information request from Lake Ontario Waterkeeper confirmed that the City typically reports these bypasses to the Ministry of the Environment promptly.

The City did not, however, report any of these bypasses to city residents when they were happening or during the time afterwards, when water quality would have been impaired. To verify this, we consulted the City of Toronto media releases for 2013. There are no mentions of any bypasses. We also contacted the City’s 311 service via telephone, email, and Twitter and were informed that bypass information is not available through 311.

Most alarming was the City of Toronto’s actions in the wake of of the July 2013 storm. After the media voiced concerns about water conditions and Mark Mattson tweeted his concern, one city spokesperson denied that bypasses had occurred (Cynthia McQueen, Globe and Mail, July 12 2013):

According to Lou Di Gironimo, general manager at Toronto Water, despite the fact that Humber Bay Water Treatment Plant in Etobicoke lost power Monday, this did not affect the water quality because of the city's central control system that distributes the system load across the city’s three other water treatment plants (emphasis added).

When Mr. Di Gironimo made his statement, the bypasses had already occurred. Toronto Water personnel, as noted in the City’s letter to the Ministry of the Environment, had visited the Humber River and done the “best possible” cleanup on July 11. This report, along with Waterkeeper’s sample results and photographs, confirms that there was an impact on water quality.

Another City of Toronto spokesperson confirmed that a bypass had occurred, but implied the figure would be lower than the media and Mark Mattson had estimated (Marc Ellison, Toronto Star, July 9, 2014):

“The volume will depend on the conditions of the storm at a given geographic area of the city,” he [Michael D’Andrea, director of water infrastructure management for Toronto Water] says. “So unless you’ve got some ability to monitor or model it, I don’t know how you would come up with that estimate [1-billion litres].”

At the time Mr. D’Andrea’s quotation was published, both the Humber and Ashbridges Bay WWTP had been bypassing for hours. The final bypass volume was 1,188,788 m3 or 1.19-billion litres.

The lack of reporting harms Torontonians’ interest

The City of Toronto’s failure to inform inhabitants when there is a sewage bypass harms the public interest in at least three ways: it interferes with individuals’ ability to protect their health and the health of their families; it prevents people from knowing that their right to a healthful environment has been compromised; and, it undermines the public’s appreciation for the importance of infrastructure upgrades. As a result, both short and long-term environmental and public health protection goals are not being met.

i. Interfering with public health

Bypasses affect water quality in and near the water. The contaminated waste water contains E. coli and other pathogenic microorganisms, oxygen demanding organic compounds, nutrients, oil and grease, toxic contaminants, and pharmaceuticals. Primary bypasses and sewer overflows may often cause used tampon applicators, condoms, and hypodermic needles to be washed to shore.

Human contact with sewage-contaminated water can result in serious health concerns including eye, ear, nose, throat infections. If any contaminated water is consumed, it can cause stomach disorders and rashes, and even result in typhoid fever, hepatitis, or dysentery.

To minimize the risk to their health, individuals should avoid contact with contaminated water in the days following a bypass. In order to do so, those individuals must have knowledge that a bypassed has occurred. City of Toronto residents do not currently have access to this information, so they cannot avoid contact with recreational waters that have been polluted by a sewage bypass.

During a visits to the Humber River on July 12 and July 16, 2013, Krystyn Tully observed individuals boating, kayaking, canoeing, and fishing at the mouth of the river. Individuals were swimming and walking their dogs at nearby Sunnyside beach; the beach water failed to meet provincial standards and was listed as “red” on the City website, but no flags were posted at the beach itself because lifeguards were not yet on duty.

It should be noted that individuals who are paddling or engaged in other watersports are also at risk from contamination, even though they are not fully immersed in the water. This concern is mentioned in the Guidelines for Canadian Recreational Water Quality.

Inadvertent immersion can result in whole body contact, and splashing can lead to a variety of water exposure scenarios. Illnesses affecting the skin and perhaps the mucous membranes of the eyes and ears may be of relatively greater importance for secondary contact uses (U.S. EPA, 2002). Inhalation may also be an important route of exposure during secondary contact activities in areas where sprays or aerosols are generated.

ii. Preventing people from knowing their environment is not “healthful”

Ontario’s Environmental Bill of Rights acknowledges that Ontarians have the right to a healthful environment. The City of Toronto is expressly prohibited from bypassing into the natural environment except in certain limited circumstances. In this context, it is entirely reasonable for city residents to assume that the water is suitable for recreational use unless they hear otherwise.

Swimming, paddling, rowing, and surfing are all ways that Ontarians enjoy the natural environment; they are connected to ancient rights that guarantee individuals’ freedom to travel from place to place, access to fisheries, and access to drinking water.

Solid and liquid bypass contaminants also impact the aquatic ecosystems. Biological contaminants can have immediate consequences, either injuring or killing microorganisms and fish. Pharmaceutical drugs and toxic chemicals can also adversely impact fish over time, bioaccumulating through the food web and leading to many different adverse health impacts including serious hormone imbalances and threats to species’ reproductive health. High sewage contaminant concentrations can also impact aquatic habitat by killing aquatic flora immediately, or encouraging invasive and destructive plant growth such as nuisance algae.

If they are not aware that bypasses are occurring, residents are not aware that these environmental impacts may also be taking place. Such information is relevant to their environmental rights, to their willingness to engage in public discourse, and to their ability to protect themselves when engaged in other water-related activities such as catching their fish for dinner.

iii. Undermining public appreciation for the importance of infrastructure improvements

There is an enormous gap between Canadians’ appreciation for clean tap water, their understanding of the infrastructure challenges affecting municipalities, and their willingness to pay for infrastructure upgrades. As the RBC Water Attitudes Survey revealed in 2012:

Canadians believe that maintaining our drinking water supply is one of the most important areas for government funding (behind hospitals and tied with schools). Yet, more than 80 per cent feel there is no need for major and immediate investment in their community's drinking water/wastewater facilities, which they believe to be in good condition, and in need of only minor investment for upkeep … [O]nly a quarter (22 per cent) would be willing to pay through a water bill or taxes into an infrastructure fund to upgrade drinking water/wastewater facilities in their community.

In Toronto, the price-tag for wastewater system upgrades exceeds $1-billion, and. Toronto Water is having difficulty securing the funds it needs. In October 2013, Toronto Water approached the City’s Executive Committee with a request to explore options for increasing future funding to Toronto Water:

Toronto Water is facing a funding shortfall of over $1 billion over the next 10 years. Additional funding needs to be raised in order to maintain current level of service and to accelerate important projects such as the City's Wet Weather Flow Master Plan and to help prevent future basement flooding.

The Staff Report also notes on pages 17-19 that residents, once educated about the city’s infrastructure challenges, are in widespread agreement that additional funds are needed. They note that, without public education, residents “did not easily understand what stormwater was and many openly admitted to not paying much attention to their water bill or being aware of what services they were paying for via the water rate.”

Given the public’s unwillingness to pay for infrastructure upgrades unless they have been educated about the issue, their (mistaken) belief that water systems are in good condition, and their belief that clean tap water is important, it is logical to conclude that educating Torontonians about the state of their water system on an ongoing basis would help Toronto Water convey the urgency of infrastructure needs in the city.

The solution is simple

The City of Toronto should begin alerting the public when bypasses are happening. This simple step would enable residents to protect their health, become informed about the state of their environment, and develop a better understanding of the city’s infrastructure challenges and needs.

An alert system would be easy to implement because the knowledge of bypass events already exists within Toronto Water and the City has a system in place for issuing alerts to residents about other issues.

When bypass events take place, Toronto Water is required to inform the Ministry of the Environment. A Freedom of Information request by Lake Ontario Waterkeeper demonstrates that Toronto Water routinely informs the MOE within a matter of minutes. This suggests that the city is aware of bypasses and has an opportunity to pass this knowledge along to others.

In order to ensure that the City issues such alerts, we are recommending that two sections be amended in each of the approvals for the city’s wastewater treatment plants:

1. Add a public reporting requirement to the “Reporting” section of the approval

A clause should be added to the approval that requires the WWTP operator to ensure bypasses are communicated to the public after they are reported to the Ministry of the Environment.

e.g., “The Owner shall forthwith notify the public that a bypass has occurred and/or is in progress and shall notify the public when the bypass has ended.”

2. Update the requirements for operations manuals in the “Operations and Maintenance” section of the approval

Plants should be required to add to their operations manuals a procedure for ensuring that bypasses are reported to the public.

e.g., (g) procedures for ensuring that bypasses are reported to the public at the beginning and the end of a bypass event.

This recommended alert is much less stringent or demanding than current reporting requirements under the EPA or Toronto’s treatment plants. Thus, it should not require additional resources to trigger an alert when a bypass occurs.

Similar bypass reporting requirements are in place in other jurisdictions, most notably in Kingston Ontario. A list of examples is attached to this request.

The public interest merits a review

Section 67 of the Environmental Bill of Rights lists several factors the Ministry may consider in determining whether the public interest merits a review:

67. (1) The minister shall consider each application for review in a preliminary way to determine whether the public interest warrants a review in his or her ministry of matters raised in the application.

(2) In determining whether the public interest warrants a review, the minister may consider,

(a) the ministry statement of environmental values;

(b) the potential for harm to the environment if the review applied for is not undertaken;

(c) the fact that matters sought to be reviewed are otherwise subject to periodic review;

(d) any social, economic, scientific or other evidence that the minister considers relevant;

(e) any submission from a person who received a notice under section 66;

(f) the resources required to conduct the review; and

(g) any other matter that the minister considers relevant.

Our submissions on considerations (a) through (c) and (f) are as follows:

(a) It would be consistent with the Ministry of the Environment’s Statement of Environmental Values to accept this Request for Review

In making this decision whether to accept this Request for Review, the Ministry of the Environment is required to consider its Statement of Environmental Values (SEVs). According to the SEV Introduction, it is a means for the Ministry to record its commitment to the environment and be accountable for ensuring consideration of the environment in its decisions.

The Ministry’s SEV states that it is committed to applying the purposes of the EBR, which are as follows:

To protect, conserve and where reasonable, restore the integrity of the environment;

To provide sustainability of the environment by the means provided in the Act; and

To protect the right to a healthful environment by the means provided in the Act.

This Request bolsters each of these purposes.

The Ministry’s SEV also states that it works to protect, restore and enhance the natural environment by:

Developing policies, legislation, regulations and standards to protect the environment and human health,

Using science and research to support policy development, environmental solutions and reporting,

Undertaking compliance and enforcement actions to ensure consistency with environmental laws, and

Environmental monitoring and reporting to track progress over time and inform the public on environmental quality.

This Request is consistent with these activities, particularly protection of environment and human health and informing the public on environmental quality.

In its SEV, the Ministry makes strong commitments to ensuring the public is informed and engaged in matters impacting the environment. The ministry emphasises the importance of public “outreach and education” as well as “timely reporting and enhanced ongoing engagement with the public”.

Lastly, the Ministry’s SEV states that it uses a range of initiatives including “public engagement” and “strategic knowledge management”, both of which would be bolstered by this Review.

These articulated values reinforce the importance of an informed and engaged public in any attempts to protect and restore the environment. Further, they underscore the MOE’s obligation to take positive steps to ensure the public is aware of the state of the environment. Thus, to deny this Request for Review would be contrary to the SEV.

(b) There is likelihood of harm to the environment if the review is not undertaken

Harm to the environment, public health, and interference with the public’s right to a healthful environment already occurs every time bypasses occur in Toronto. As noted above, these bypasses occur on average every one to two weeks. The public is not informed and, as a result, Torontonians are paddling, surfing, rowing, and wading in contaminated waters. Further, their ignorance of the state of the city’s wastewater infrastructure is such that they may not fully support investments that need to be made to ensure the city’s system promotes basic environmental protection.

From June 14 - July 6, 2014, Lake Ontario Waterkeeper asked Torontonians to self-identify as recreational water users in order to demonstrate that there are many individuals who use the water and are interested in water quality issues. During that time 323 individuals registered and declared that they use the water in the following ways: fish, wind surf, kayak, canoe, swim, wade, boat, study, drink, research, dog swim, work, surf, and sailing.

The City’s comments in the days following the 2013 flood demonstrate that alerting these recreational water users about bypass events and risks is not a high priority. If the City did not feel it necessary to alert the public following the largest flood event in history, a loss of power at one treatment plant, and bypasses that lasted overnight, then it is unlikely the City will adopt an alert system voluntarily.

Even after the storm subsided, eliciting information from the City of Toronto was extremely difficult - far too onerous for most residents to undertake voluntarily. Lake Ontario Waterkeeper filed a formal Municipal Freedom of Information and Protection of Privacy (MFIPPA) request with the City of Toronto. The organization requested information concerning the volume, location, and duration of treatment plant bypasses for the week of July 8. It also asked for sampling results of Toronto’s beaches in the days following the storm. Even though the City had this information 48 hours after the storm, it took 4 months for it to be released to the charity.

Lastly, it is important to note that the concerns related to bypasses and the City’s infrastructure woes will only get worse with time. The City’s population is increasing, meaning more people are connecting to the outdated system and more land is being developed. Climate change and severe weather are taking their toll, too. The City has experienced three “100-year storms” in the last 60 years. This issue cannot be deferred without resulting in additional harm to the public.

(c) This matter is not otherwise subject to review

This matter is not subject to regular review, nor has it been adequately considered in recent amendments to the plants’ various approvals.

The Environmental Bill of Rights allows the minister to deny a request if it relates to a decision made during the five years preceding the date of the application for review if the decision was made in a manner that the minister considers consistent with the intent and purpose of Part II (Section 69(1)).

The approvals for Toronto’s WWT Plants have been reviewed at different times in the last five years; however, this alone is not a reason to deny the Request for Review. The approvals were clearly environmentally significant: no other facility in the City discharges as much wastewater into the natural environment as the wastewater treatment plants and, as the numbers above demonstrate, the frequency and volume of bypasses are significant.

Such decisions are supposed to be subject to public consultation, typically via the Environmental Registry (a provincial tool meant to inform the public about environmentally significant decisions. None of the WWT Plant approvals was posted to the Environmental Registry.

In failing to solicit information from the public, the Ministry and the City failed to identify this important public issue, to take into account relevant evidence, or to provide Toronto residents with an opportunity to participate in a decision that directly affects their ability to protect their health. It would be a compound failure to reject this request for review when the issue is brought directly to the Ministry’s attention.

(f) Few resources are required to conduct this review

The requested review would not require significant resources. Our request and ultimate recommendations are narrow and specific, and involve a small number of documents. Moreover, should the Ministry agree that a bypass alert protocol is warranted, the cost to implement it would be minimal for the reasons described above. In short, the benefits to public health and the environment greatly outweigh the minimal cost to the Ministry and City.

This review is consistent with other key legislative and policy aims

This review is consistent with the Ministry’s mission statement, published on its homepage:

The Ministry of the Environment and Climate Change is responsible for promoting clean and safe air, land, and water to ensure healthy communities, ecological protection and sustainable development for present and future generations of Ontarians.

This review is also consistent with the purposes of the Ontario Water Resources Act, the primary legislation that regulates wastewater treatment plants and bypasses:

The purpose of this Act is to provide for the conservation, protection and management of Ontario’s waters and for their efficient and sustainable use, in order to promote Ontario’s long-term environmental, social and economic well-being.